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Old 04-21-2013, 01:15 AM
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Post Judge Calls ADA Attorney Suing Subway Owners a Parasite


Judge Calls ADA Attorney Suing Subway Owners a Parasite
Posted Fri, 2013-04-19 12:48 by Janet Sparks
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NEW YORK – A district judge had a few choice words for an attorney filing multiple lawsuits against Subway franchisees, who were not compliant with disability laws that protected his disabled clients. Quoting a legal giant who helped pave the way for passage of the Americans with Disabilities Act (ADA) legislation, the judge stated, “A lawyer is either a social engineer or he’s a parasite on society.” Then, in addressing the case before him he exclaimed, “The conduct of counsel is indicative of a parasite disguised as a social engineer. It must stop.”

Adam Shore, representing wheelchair-bound Mike Costello, who often frequents Subway sandwich restaurants in his neighborhood is the culprit Judge Sterling Johnson, Jr. referred to. The disabled wannabe customer claimed he could not access the shop because owner Flatman, LLC failed to comply with provisions of the civil rights law. When the franchisee did not answer the complaint and failed to appear in court, a judge granted a motion for default judgment and awarded Mr. Costello $14.31.

The customer then went after the attorney fees and costs that he had incurred in the lawsuit, amounting to $15,172.50. Attorney Shore presented billing records to the court showing 35.7 hours for the services he and another attorney, B Bradley Weitz of Florida, rendered at a rate of $425 per hour. Judge Johnson was not impressed with the attorneys’ recordkeeping, and expressed that the papers submitted failed to authenticate their billing statements in any way.

The judge also noted that Shore had filed on the same day seven other identical lawsuits for Costello against small businesses within a two-block radius of Flatman’s Subway restaurant. Because Judge Johnson had presided over one of those other cases, he requested that the Mike Costello v Flatman, LLC case be reassigned to him. While there were other defendants named in the original complaint, Flatman was the only remaining named company in the lawsuit.

When Mr. Costello failed to appear at the first conference scheduled by the court, attorney Shore explained that his client was in Ireland attending to a sick relative. The court requested a telephone number where the client could be reached, but Shore did not provide it. Client Costello then failed to appear at the second status conference on July 27, 2012, and, surprisingly, three months later both Costello and his attorney were no-shows. Shore then presented a letter to the judge stating that Costello had permanently moved to Ireland.

Oral argument goes from bad to worse

At the scheduled oral argument on January 9, 2013, attorney Shore was ill-prepared and unable to answer simple questions about his client. The court asked him how Costello could acquire $15,000 in attorney fees for a $14.31 default judgment. Rather than detail the quality and quantity of his and his partner’s services, the attorney explained to the judge that the law allows attorney fee awards in excess of his client’s recovery. When the court questioned him about his relationship to attorney Weitz in Florida, noting that the two lawyers were co-counsel in at least 42 ADA lawsuits in New York and Florida, Shore only explained that their law firms were “separate.” He then tried to distance himself from his partner, hoping Weitz’s troubling reputation didn’t reflect on him. When asked to justify their $425 hourly rate, Shore’s explanation was that he was entitled to it because he had been awarded that rate in three other actions. He did concede however that he would accept a lower hourly rate of $275.

Attorneys use disabilities laws to extort money from businesses

After the judge reviewed many of the cases filed by the two attorneys, he said nothing is more telling than the similarity of the tactics they used and the outcome of each case filed by Costello. Judge Johnson also visited all eight stores sued by Costello, and he was shocked to see that most if not all of the alleged structural deficiencies preventing access to disabled customers still exists. As a result, he determined that the litigation was really about collecting attorney fees and not about giving the disabled access to the businesses.

New York attorney Paul Steinberg, involved in some of the litigation, said the judge was right in saying that the real purpose of the lawsuits was to get attorney fees for clients. “This type of litigation is pretty distasteful. These attorneys are basically using the law to extort money from people. Franchisees or other business owners know they will spend 30 to 60 thousand dollars to litigate the case, so when the plaintiff attorney says just pay us 15 or 20 grand and we’ll call it a day the owner takes the offer.That’s extortion,” says Steinberg.

While Congress passed the Americans with Disabilities Act of 1990 to protect people with disabilities, Steinberg said some lawyers have ulterior motives. “They are supposed to be acting as private attorneys in general to vindicate the public interest. But the point of fact is that it has become the tail wagging the dog. Much of this litigation is driven by these types of lawyers trying to get attorney fees.

Steinberg, who has represented Subway franchisees, cautions, “If franchise or business owners are sued on ADA claims, the first thing they need to do if they are in violation is fix the problem. “That way the case is moot, and the attorney fee is moot.” He said the Supreme Court stated in its decision.

The second thing business owners need to know is that there is a difference in being ADA compliant and ADA accessible. “If you cannot make changes to allow the disabled accessibility to your store, then you must be compliant. Compliant means you have made alternative methods to oblige the disabled.” He said as an example, a restaurant might provide a drive-through window for someone in a wheelchair, or a pizza chain might deliver the product to a disabled person’s home.

Judge lashes out at attorneys

In the judge’s closing remarks, he states, “The court puts Shore and Weitz on notice that these tactics will no longer be tolerated. If they continue to take on this noble cause, they must do it with the integrity and ethics required of all lawyers, respective of practice area.” Judge Johnson then declared, “The court will not be shy about informing the appropriate state bar authorities and chief judges across this country should Shore and Weitz unadvisedly continue to litigate in this fashion.” He ruled, “Accordingly, plaintiff’s motion is denied with prejudice,” disallowing attorneys fees and costs.
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